- Positive law
Positive law is a legal term that is sometimes understood to have more than one meaning. But in the strictest sense, it is law made by human beings, that is, "Law actually and specifically enacted or adopted by proper authority for the government of an organized
jural society." ["Positive law," "Black's Law Dictionary", 5th Edition, 1979, West Publishing Co.] This term is also sometimes used to refer to the legal philosophy, legal positivism, as distinct from the schools of natural lawand legal realism.
Various philosophers have put forward theories contrasting the value of positive law relative to
natural law.The normative theory of lawput forth by the Brno schoolgave pre-eminence to positive law because of its rational nature. Classical liberaland libertarianphilosophers usually favor natural law over legal positivism.
Positive law to
Rousseauwas freedom from internal obstacles.
Positive law and the United States Code
In the United States the federal statutes are passed by the
United States Congress. Some statutes are also "codified" (separately organized and published by subject matter) while others are not. While both codified and uncodified statutes are, in the broad sense, "positive law" (as the term is used above), the term "positive law" also has a separate, more restricted meaning when used to refer to codified statutes (see Codification).
Section 204 of title 1 of the
United States Codeprovides (in part, emphasis added):
:In all courts, tribunals, and public offices of the United States, at home or abroad, the matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and permanent in their nature, in force on the day preceding the commencement of the session following the last session the legislation of which is included: Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.
According to the
Office of the Law Revision Counselof the United States House of Representatives:
:Certain titles of the [United States] Code have been enacted into positive law, and pursuant to section 204 of title 1 of the Code, the text of those titles is legal evidence of the law contained in those titles. The other titles of the Code are prima facie evidence of the laws contained in those titles. The following titles of the Code have been enacted into positive law: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 44, 46, and 49. [ [http://uscode.house.gov/about/info.shtml Office of the Law Revision Counsel] ]
In the case of titles that are positive law (in the restricted sense), the text of the title itself, as published in the United States Code by the
United States Government Printing Office, is conclusive evidence of the exact wording and punctuation of the statute. In litigation over a provision of the United States Code, this means that to determine the actual wording of the statute the court generally will not look beyond the text as printed in the Code itself.
The titles of the United States Code that are not positive law "in this restricted sense" are sometimes referred to as "non-positive law" (i.e., not "negative law"). The status of a particular provision in a title that is "non-positive" law has no bearing on the "legality" of that provision except to the extent that (due to a typographical error or other variance) the text of the Code does not exactly match the Act of Congress as published in the "
United States Statutes at Large" (also published by the United States Government Printing Office) that is the source of the provision. In the case of a variance, the text in the United States Statutes at Large is the controlling law.
To make matters somewhat more confusing, certain titles of the United States Code such as title 26 (the
Internal Revenue Code), while denoted as "non-positive" law (in the "restricted" sense), actually represent the currently amended version of "positive" law (in the "broader" sense of a "duly enacted statute"). That is, title 26 of the United States Code, denominated as the "Internal Revenue Code of 1986," as amended, is apparently identical to the Internal Revenue Code of 1954as amended. The Internal Revenue Code of 1954 was enacted as positive law (on August 16, 1954), and was also codified as "title 26" of the United States Code.
The designation of a particular title of the Code as "positive" or "non-positive" law usually has little practical significance, as there are very few substantive variances between the texts of statutes as published in the United States Code and the texts of the same statutes in the United States Statutes at Large.
* [http://www.llsdc.org/attachments/wysiwyg/544/usc-pos-law-codification.pdf Positive Codification in the United States Code]
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